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Haseeb vs State on 31 October, 2019

IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 31.10.2019

+ CRL.A.1200/2016

HASEEB ….. Appellant
versus

STATE ….. Respondent
Advocates who appeared in this case:
For the Appellant: Mr. Dhan Mohan, Ms. Tanu B. Mishra, Mr.
Ravi Mishra and Ms. Roshni Rani.

For the Respondent: Ms. Kusum Dhalla, APP for State.

CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT

VIBHU BAKHRU, J

1. The appellant has filed the present appeal, inter alia, impugning
a judgment dated 06.06.2016 passed by the Ld. ASJ Spl. FTC, Saket
Courts, Delhi, whereby the appellant was convicted of the offences
punishable under Sections 342/Section376/Section506 of the Indian Penal Code,
1860 (SectionIPC). The appellant also impugns an order dated 08.06.2016,
whereby the appellant was sentenced to six months of imprisonment
and a fine of ₹1,000/- (in default of which he would have to undergo
imprisonment for a period of one month) for the offence under Section
342 of the IPC; rigorous imprisonment for a period of seven years and
a fine of ₹15,000/- (in default of which he would have to undergo

CRL. A. 1200/2016 Page 1 of 19
imprisonment for a period of six months) for the offence under
Section 376 of the IPC, and; rigorous imprisonment for a period of
one year and a fine of ₹3,000/- (in default of which he would have to
undergo imprisonment for a period of two months) for the offence
under Section 506 of the IPC.

2. The impugned judgment was rendered in connection with a case
arising from FIR No. 407/2015 under Sections 342/Section376/Section506 of the
IPC, registered with P.S. Defence Colony on 09.10.2015. The said
FIR was registered at the instance of the prosecutrix, who alleged that
she worked as a cleaner at a boutique in the Defence Colony area and
had been doing so for the past six years. She alleged that the appellant,
who works as a tailor at the said boutique, had raped her on
03.10.2015 at about 10:00 a.m., while she was cleaning the premises.
She alleged that the appellant came from behind her and pushed her to
the floor, gagged her mouth and proceeded to rape her. Thereafter, he
threatened to kill her should she report the same.

3. In order to bring home the conviction of the appellant, the
prosecution examined eight witnesses. The Trial Court had evaluated
the evidence available and had found the appellant guilty of the
offences for which he was charged.

4. The appellant has challenged the impugned judgment on the
grounds that, inter alia, there are inconsistencies in the testimonies of
the prosecution’s witnesses and they have contradicted their own
statements and the evidence, as obtaining in this case does not

CRL. A. 1200/2016 Page 2 of 19
corroborate the testimonies of the witnesses. Further, the evidence, as
adduced, is tainted and does not establish that the appellant had
committed any offence, beyond the threshold of reasonable doubt.

5. The learned Additional Public Prosecutor (APP) appearing for
the State has countered the aforesaid submissions and contends that
there was no material inconsistency in the testimony of the prosecutrix
and the evidence led clearly established that the appellant was guilty
of the offences for which he has been convicted. It is also submitted
that the testimony of the prosecutrix is coherent and corroborated by
the evidence as adduced and suffers from no inconsistency.

Evidence

6. Before proceeding further, it is relevant to briefly examine the
evidence led by various witnesses.

7. The prosecutrix in her statement under Section 164 of the Code
of Criminal Procedure, 1973 (SectionCrPC) stated that on 03.10.2015 at
about 10:00 a.m., she was cleaning the premises in which the alleged
offence had occurred. She states that the appellant also worked in the
said premises as a tailor, and was present at the said premises at the
material time. She states that the appellant had been troubling her for a
few days and would profess his love for her. Even when she told him
that she was married and had six children, he would not abate. She
further stated that on the aforementioned date, he proceeded to rape
her and when she tried to escape, he bolted the door.

CRL. A. 1200/2016 Page 3 of 19

8. The prosecutrix – examined as PW-1 – deposed that she had
started working at the boutique in the year 2015 and had been working
there for a period of two years and her working hours were 09:00 a.m.
to 03:00 p.m. She stated that she was employed to clean the boutique.
She stated that the appellant was employed to do stitching at the said
boutique. She states that on 03.10.2015 at about 10:00 a.m., she was
cleaning the room in the basement and there was no one present there
at that time. Thereafter, the appellant came from behind her, bolted the
door, gagged her mouth and forcibly committed sexual intercourse
with her. Thereafter, he picked up a scissor lying nearby and
threatened to kill her should she inform anyone of the said incident.
PW-1 stated that thereafter, on 09.10.2015, she informed her husband
of this incident, who then took her to the police station and got her
statement recorded. She stated that she also informed the examining
doctor that she had established physical relations with her husband
after the alleged incident. She handed over her clothes to the IO,
which she deposed that she had washed and worn once again after the
alleged incident.

9. In her cross examination, she stated that two more offices
surrounded the premises in which the alleged incident had occurred.
One of them always remained shut while the other one was an
advocate’s office. It was stated that two boys, namely, Chhotu and Raj
were working at the said advocate’s office. She states that the distance
between the premises in which she was working and the advocate’s
office was about one meter and she stated that voices could be heard

CRL. A. 1200/2016 Page 4 of 19
from both sides. It was further stated that at the material time, the door
of the adjoining advocate’s office remained and that Chhotu remains
at the said office at all times. PW-1 stated that it was correct that she
neither informed her employer nor Chhotu about the incident after it
occurred. She further stated that the room in which the alleged
incident was stated to have occurred was 9X9 feet and that there were
three sewing machines and one cutting table in the said room (after
factoring in the three sewing machines and the cutting table, the area
left in the room would be about 3X3 feet). Thereafter, she had told the
police as well as the Magistrate that the accused had picked up a
scissor from the table and threatened to kill her if she informed
someone about the said incident. She stated that she had worked till
03:00 p.m. on the date of the alleged incident and stopped working
there on 09.10.2015. She informed her employer of the said incident
on 07.10.2015, who told her that she did not want to see the police on
her premises. She stated that she told her husband of the alleged
incident on 07.10.2015 at about 04:00 p.m. She stated that she had
informed the police and the magistrate of the foregoing fact, but her
statements which were shown to her in Court did not reflect the same.
She stated that even though she had the mobile number of the accused,
she never called him on the same. She states that it is wrong to suggest
that she would call the accused on his mobile phone ten times daily.
She stated that she did not receive any injuries due to the alleged
incident. She reiterated that she had established physical relations with
her husband after the alleged incident and before her medical
examination. She stated that it was wrong to suggest that she had told

CRL. A. 1200/2016 Page 5 of 19
her husband about the incident on 09.10.2015. She stated that she had
lodged the complaint against the accused herself. She states that it is
wrong to suggest that there was no space in the room to lie down. She
stated that it was wrong to suggest that she had hatched a conspiracy
with her husband to extort money from the accused. Further, she
stated that Chhotu remained at the adjoining advocate’s office twenty-
four hours, but Raj did not stay there for twenty-four hours.

10. Ashok Kumar, the prosecutrix husband had deposed as PW-2. It
was stated that he got married to the prosecutrix in the year 1998 and
that they have six children. He deposed that on finding his wife scared
for a few days, she stated that she had been raped by the accused on
03.10.2015 at about 10:00 a.m. in the basement. He that the accused
had threatened the prosecutrix and had told her not to inform anyone
about the said incident.

11. In his cross examination, PW-2 stated that the prosecutrix
informed him of the alleged incident on 07.10.2015 in the evening.
Further, he stated that he had established physical relations with the
prosecutrix between 03.10.2015 and the date on which the complaint
was lodged. He stated that the mobile number 8376092002 remained
with him and the mobile number 9540846613 remained with the
prosecutrix.

12. Dr. Karnika Tiwari – who deposed as PW-3 – conducted the
medical examination of the accused. In her cross examination, she
stated that she could not express any opinion on the sexual relations

CRL. A. 1200/2016 Page 6 of 19
between the accused and the prosecutrix. She deposed that she did not
observe any external injuries on the prosecutrix. And, nor did she find
any injury on her private parts.

13. Smt Ravinder Kaur – who deposed as PW-4 – is the owner of
the boutique in which the said incident is alleged to have occurred.
She stated in her examination in chief that officials of P.S. Defence
Colony came to her residence and informed her about the alleged rape
on the prosecutrix by the accused. In her cross examination, she
deposed that the accused would usually come to work after 12:00 p.m.
and that he never came before 12:00 p.m., however, she did not
remember at what time the accused came to the said boutique on
03.10.2015.

14. SI Pratibha, P.S. Defence Colony – who deposed as PW-7 –
stated in her examination in chief that she endorsed the prosecutrix
statement and registered her complaint when she came to the police
station for the first time. She further stated that the accused
surrendered at the police station on 13.10.2015, in the presence of the
prosecutrix. In her cross examination, she deposed that it was correct
to state that there was a passage measuring approximately three feet in
the basement and that one of the offices in the said basement remained
closed. She deposed that she had met Chhotu, who worked in the other
office, but he had not told her anything about the alleged incident. She
further deposed that it was her who told the prosecutrix employer
(PW-4) about the alleged incident of rape. She deposed that the
prosecutrix had given her two mobile numbers, but she did not obtain

CRL. A. 1200/2016 Page 7 of 19
the CDRs of the same and neither did she verify who the subscriber(s)
of the said mobile numbers were. She further stated that PW-4 did not
inform her about the duty timings of the accused. She further deposed
that she inspected the boutique where the alleged incident took place.
She deposed that there were three-four stitching tables and a table for
ironing clothes. The available floor space was about 8X3 feet and the
room was about 9X9 feet. She deposed that it would be wrong to
suggest that it was impossible to commit rape in the space available in
the said room. She further deposed that the size of the cutting table
was 8X4 feet and that of the sewing machine was 22×36 inches. She
stated that she did not get the area photographed. She deposed that it
would be wrong to suggest that she did not photograph the room as
that would prove that it would be impossible to commit rape in the
same. She deposed that it would be wrong to suggest that she prepared
a false site plan.

Submissions

15. The learned counsel appearing for the appellant had referred to
the testimonies of various witnesses and submitted that the testimony
of the prosecutrix could not be relied upon. He states that the same
was not corroborated with other evidence and there were several
inconsistencies in the statement of the prosecutrix recorded under
Section 161 of the CrPC and her testimony. He also submitted that
the conduct of the prosecutrix after the incident did not indicate the
occurrence of any incident.

CRL. A. 1200/2016 Page 8 of 19

16. Ms Dhalla, learned APP appearing for the State countered the
aforesaid submissions. She said that it is settled law that conviction
for an offence under Section 376 of the IPC can be sustained solely on
the statement of the prosecutrix. She also submitted that the trial court
had rightly found that the appellant had intimidated the prosecutrix
and was also guilty of offences under Sections 342 and Section506 of the
IPC.

Reasons and Conclusion

17. It is trite law that a conviction for an offence under Section 376
of the IPC can be sustained solely on the testimony of the prosecutrix.
The rationale is that the prosecutrix would suffer ignominy on
bringing such a charge and therefore, would not make such an
allegation if the same were not true. However, it is also equally well
settled that if such testimony of the prosecutrix does not inspire
confidence and there are grounds to doubt the same, the accused
would not be deprived of the benefit of doubt.

18. The evidence obtaining in the present case indicates that there is
no evidence whatsoever against the appellant, except the testimony of
the prosecutrix. The said testimony of the prosecutrix is also
inconsistent with the statements recorded under Sections 161 and Section164
of the CrPC.

19. The statement of prosecutrix was recorded on 09.10.2015. In
her statement, she had reported that she was working at house no. A-
62, Defence Colony, New Delhi, since the past two years. She stated

CRL. A. 1200/2016 Page 9 of 19
that there is a tailoring shop/boutique in the basement of the said
property and the appellant was employed at the boutique to carry out
tailoring work (silai ka kaam). She stated that she carries on her work
of washing clothes and sweeping from 9:00 a.m. to 3:00 p.m. She had
alleged that on 03.10.2015 at about 10:00 a.m., she was sweeping the
room in the basement and the appellant had approached her from
behind. He had made her fall down (neechey gira diya). She stated
that he had already stripped off his trouser and had put it aside on the
floor. He then muffled her (muh band kar diya) and had proceeded to
rape her. She also alleged that he had threatened her that if she
reported the incident, he would kill her. She stated that she was
scared as the appellant had closed the door from the inside and was
not permitting her to leave. She stated that after some time, she
gathered courage and inform her husband, who had then brought her
to the police station.

20. The statement of the prosecutrix was recorded under Section
164 of the CrPC on 10.10.2015. She had repeated the incident as
recorded in her statement earlier. However, there was further
improvement. She now stated that the appellant had been troubling
her and had been expressing his love for her. She stated that she was
married and was a mother of six children and even on being informed
about the same, the appellant did not back down. She stated that the
appellant had raped her on finding her alone at 10:00 a.m. on
03.10.2015, when she was cleaning the basement. She stated that she

CRL. A. 1200/2016 Page 10 of 19
tried to get out of the said room, however, she could not do so, as the
door was closed.

21. The prosecutrix deposed as PW-1. She deposed that in the year
2015, she was working as a maid in the house (kothi no. A-62,
Defence Colony, New Delhi) since the past two years. She stated that
her employer ran a boutique in a room of the basement of the said
house and she used to clean the same. She identified the appellant and
stated that he used to work at the boutique and carried on the work of
stitching. She stated that her working hours were from 9:00 a.m. to
3:00 p.m. She stated that on 03.10.2015 at 10:00 a.m., while she was
cleaning the room the accused (appellant) had approached her from
behind and bolted the door from inside. He gagged her mouth and
caused her to fall on the floor. He lowered his trouser and also
lowered her salwar and forcibly engaged in sexual intercourse. She
stated that she would complain to the police. She stated that
thereafter, he had lifted the scissors from the table and threatened to
kill her if she told. She stated that she got scared and therefore, did
not inform anyone about the incident. She stated that on 09.10.2015,
after mustering courage, she told her husband about the incident who
then escorted her to the police station.

22. The prosecutrix was, thereafter, cross-examined. In her cross-
examination, she stated that she had informed about the incident to her
employer on 07.10.2015 and had also informed her husband about the
same on 07.10.2015 at about 4:00 p.m.. There is variation in the facts
as testifying and her cross-examination. In her examination-in-chief,

CRL. A. 1200/2016 Page 11 of 19
she had stated that she had informed her husband about the incident on
09.10.2015. However, in her cross-examination, she stated that he
had informed her husband about the incident on 07.10.2015.

23. The employer of the prosecutrix deposed at PW-4. She did not
support the testimony of the prosecutrix, inasmuch as, she stated that
the police had come to her boutique and informed her that accused
(appellant) had raped the prosecutrix. Here, the learned APP desired
to put a leading question to the witness. He was permitted. However,
he did not pose any question or make any suggestion to the effect that
the prosecutrix had informed PW-4 about the incident on 07.10.2015,
as stated by the prosecutrix in her cross-examination. This Court is of
the view that the same is material. The version of the prosecutrix, that
she had informed her husband and her employer on 07.10.2015, is not
supported by the employer of the prosecutrix (PW-4) and her
statement that she had informed her husband on 07.10.2015. The same
is inconsistent with the examination-in-chief, where she stated that she
had informed her husband on 09.10.2015.

24. The next area which raises a doubt is regarding the presence of
the appellant in the said basement at 10:00 a.m. PW-4 (the employer
of the prosecutrix) and the appellant had deposed that the appellant
used to come after 12:00 noon. She had further testified that “he
never came before 12:00 noon”.

25. The prosecution did not place in record any material
whatsoever, which would establish the presence of the appellant on

CRL. A. 1200/2016 Page 12 of 19
the spot at 10:00 a.m. Although it has been brought on evidence that
the appellant carries a mobile phone, CDRs were not obtained and if
obtained, were not placed on record.

26. The statement of the appellant was also recorded under Section
313 of the CrPC. He too stated that he never went to the said boutique
before 12:00 noon. It is also relevant to note that there were two other
offices in the basement and admittedly, one of the offices was that of a
lawyer and it was admitted that one office boy named Chhotu
remained at the said lawyer’s office throughout. The prosecutrix in
her cross-examination had stated that Chhotu remains in office
twenty-four hours. However, Chhotu (the said office boy) was not
examined.

27. PW-4 (the employer of the appellant) was also examined. She
also did not depose that the appellant had come to the boutique at
10:00 a.m. on the date of the incident. On the contrary, she stated that
he never came to the boutique before 12:00 noon. Thus, apart from
the statement of the prosecutrix, there was no other material to even
establish the presence of the appellant on the spot at the relevant time.

28. Insofar as the incident is concerned, it is admitted by PW-1 in
her cross-examination that the distance from the gate of the boutique
to the lawyer’s office was about one meter and voices can be heard
from both sides. Thus, if the prosecutrix had raised any alarm, it
would have been heard in the adjoining office. Although it is stated
that the incident took place on a Saturday when offices remain closed;

CRL. A. 1200/2016 Page 13 of 19

however, since it was also brought in evidence that Chhotu remained
in office twenty-four hours – it is reasonable to assume that if any
alarm was raised by the prosecutrix, it would have been heard.
However, the prosecutrix did not raise any alarm. Ms Dhalla, learned
APP, had contended that the prosecutrix was scared that she had been
threatened by the appellant. However, the examination of the
testimony clearly indicates that the appellant had not threatened the
prosecutrix with scissors at the time of the incident. She had deposed
that he had picked up the scissors after the prosecutrix had told him
that she would inform the police. This was after the offence had been
committed. Apart from the above, the version of the prosecutrix that
the appellant had threatened with the scissors, is also doubtful since it
does not form a part of the statement recorded on 09.10.2015 or the
statement under Section 164 of the CrPC, which was recorded on
10.10.2015.

29. Yet another important aspect is the space where the incident
allegedly took place. PW-7 had deposed that the size of the room
(boutique) was 9×9 feet. The said room had 3-4 stitching machines
and a table for ironing clothes. The size of the cutting table was 8×4
feet. The prosecutrix in her cross-examination had deposed that the
vacant space in the said room was only 3×3 feet. The prosecutrix had
described that she was gagged and pushed to the floor. She had
deposed that, thereafter, the appellant had raped her. It is expected
that such a forcible act in a cramped space of 3×3 feet would result in

CRL. A. 1200/2016 Page 14 of 19
some injuries. However, there were no injuries suffered by the
prosecutrix.

30. In addition to the above, the prosecutrix had deposed that the
appellant had lowered his trouser and had also lowered her salwar.
There is minor variation in this testimony and the statement recorded
on 09.10.2015. In her initial statement, the prosecutrix had stated that
he had already removed his trousers and had put it on the floor.
Though these minor consistencies may not be relevant; however, it is
important to note that none of the clothes worn by the prosecutrix
were torn. The prosecutrix had handed over a salwar as well as her
undergarments to the IO. None of the two garments had been torn or
indicated any distress. It is expected that in a forcible act, as has been
alleged, the removal of clothes would result in some distress to the
clothes, particularly, given the cramped space in which the rape is
alleged to have been committed.

31. The clothes handed over by the prosecutrix also would not yield
any evidence since the prosecutrix had washed these clothes and had
also worn them thereafter. A medical examination would also do not
reveal anything material since the prosecutrix had claimed that after
the incident, she had also established physical relationship with her
husband. In view of the above, no evidence of the incident was
yielded by the medical examination or the clothes worn by the
prosecutrix on the day of the incident. As noticed above, the only
material fact is that the clothes worn by the prosecutrix did not have
any damage.

CRL. A. 1200/2016 Page 15 of 19

32. It is important to note the conduct of the prosecutrix. As
noticed above, the prosecutrix did not raise any alarm at the material
time. Although in her statement recorded under Section 164 of the
CrPC, she had complained that the appellant was pursuing her; no
such allegation was made in a statement recorded on 09.10.2015 or in
her examination-in-chief.

33. She had made no complaint in this regard to her employer or to
her husband. Neither the prosecutrix nor her employer had deposed to
the aforesaid effect. Her husband has also not deposed that he was
aware of the appellant pursuing the prosecutrix prior to the incident.

34. The prosecutrix continued to do her work on the date of the
incident and remained at the premises till 3:00 p.m. Clearly, this
Court finds it difficult to understand this conduct. Even if the
prosecutrix did not report the incident to any person, surely she does
not expect to continue working at the premises as she would have
done on any other day.

35. As noticed above, there is a delay in filing the FIR.

36. The inconsistencies in the testimony of the prosecutrix and her
statement recorded earlier; the fact that the testimony of the
prosecutrix is not supported by her employer (PW-4); the
improbability of lack of any injury and such forceful act being
committed in a cramp space of 3×3 feet; absence of any evidence
whatsoever to establish (other than the statement of the prosecutrix)
the commission of the alleged crime to establish that the appellant was

CRL. A. 1200/2016 Page 16 of 19
present on the spot at the material time; affirmative evidence that the
appellant never reported to prior before 12:00 noon; no indication of
any forceful incident yielded by the clothes worn by the prosecutrix;
lack of any medical evidence, and; the conduct of the prosecutrix, read
together, do raise doubts as to the case set out by the prosecution.

37. It is well settled that the testimony of the prosecutrix should not
be suspended and her statement is required to be evaluated as that of
an injured witness. However, it is not necessary such evidence is not
required to be accepted as the absolute truth, even where there are
grounds for doubt. The principle that the prosecution must establish
its case beyond reasonable doubt, is not required to be diluted. SectionIn
Raju and Others v. State of Madhya Pradesh: (2008) 15 SCC 133,
the Supreme Court had observed as under:-

“10. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a
prosecutrix should not be suspect and should be
believed, the more so as her statement has to be
evaluated at par with that of an injured witness
and if the evidence is reliable, no corroboration is
necessary. Undoubtedly, the aforesaid
observations must carry the greatest weight and
we respectfully agree with them, but at the same
time they cannot be universally and mechanically
applied to the facts of every case of sexual assault
which comes before the Court.”

38. SectionIn Tameezuddin @ Tammu v. State (NCT of Delhi): (2009) 15
SCC 566, the Supreme Court had observed as under:-

CRL. A. 1200/2016 Page 17 of 19

“It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration,
but to hold that this evidence has to be accepted even if
the story is improbable and belies logic, would be doing
violence to the very principles which govern the
appreciation of evidence in a criminal matter.”

39. SectionIn Narender Kumar v. State (NCT of Delhi): 2012 7 SCC 171,
the Supreme Court had observed as under:-

“It is a settled legal proposition that once the
statement of prosecutrix inspires confidence and is
accepted by the court as such, conviction can be based
only on the solitary evidence of the prosecutrix and no
corroboration would be required unless there are
compelling reasons which necessitate the court for
corroboration of her statement. Corroboration of
testimony of the prosecutrix as a condition for judicial
reliance is not a requirement of law but a guidance of
prudence under the given facts and circumstances.
Minor contradictions or insignificant discrepancies
should not be a ground for throwing out an otherwise
reliable prosecution case.

A prosecutrix complaining of having been a
victim of the offence of rape is not an accomplice after
the crime. Her testimony has to be appreciated on the
principle of probabilities just as the testimony of any
other witness; a high degree of probability having been
shown to exist in view of the subject matter being a
criminal charge. However, if the court finds it difficult
to accept the version of the prosecutrix on its face value,
it may search for evidence, direct or substantial, which
may lend assurance to her testimony. (Vide: SectionVimal
Suresh Kamble v. Chaluverapinake Apal S.P. Anr.,
AIR 2003 SC 818; and SectionVishnu v. State of Maharashtra,
AIR 2006 SC.”

CRL. A. 1200/2016 Page 18 of 19

40. For the reasons stated above, this Court is of the view that
prosecution had failed to establish its case beyond reasonable doubt.
The facts and the evidence obtaining in this case do raise certain
doubts as to the testimony of the prosecutrix, which is the only
foundation on which the case of the prosecution rests.

41. There is also no evidence apart from the statement of the
prosecutrix that she had been intimidated or confined by the appellant.

42. In view of the above, the appeal is allowed. The impugned
judgment dated 06.06.2016 and the order dated 08.06.2016 sentencing
the appellant, are set aside. The appellant is acquitted of the offences
for which he is charged. Admittedly, the appellant is not involved in
any other case. Thus, the jail authorities are directed to release the
appellant forthwith.

VIBHU BAKHRU, J
OCTOBER 31, 2019
MK

CRL. A. 1200/2016 Page 19 of 19

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